Bombay High Court
Maharashtra State Electricity ... vs M/S Shubhalaxmi Rice Mill, M.I.D.C. ... on 27 April, 2020
Author: Manish Pitale
Bench: Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 5234 OF 2016
1) Maharashtra State Electricity
Distribution Co. Ltd. through
its Executive Engineer, Gondia
2) The Assistant Executive Engineer,
Maharashtra State Electricity
Distribution Co. Ltd.
Goregaon Sub Division(O & M)
Goregaon, District Gondia .. PETITIONER
...V E R S U S...
1) M/s. Radhika Rice Industries
Tumkheda, Tahsil Goregaon, Dist.Gondia
through Shri Tulsidas s/o Bhagwandas Khatwani
aged 35 years, occu. Business,
R/o Tumkheda, Tahsil Goregaon,
Dist.Gondia
2) The Superintending Engineer
(Electrical) Appellate Authority under the
Electricity Act Public Works Department
Having office at 9, Ramkrishyna Nagar,
Ajni Square, Wardha Road, Nagpur .. RESPONDENTS
WRIT PETITION NO. 4252 OF 2019
The Executive Engineer (O & M) Division,
Maharashtra State Electricity Distribution
Co. Ltd. Congress Nagar, Nagpur .. PETITIONER
...V E R S U S...
1) Vidarbha Infotech Pvt. Ltd.
c/o Alankar Real Estate Pvt. Ltd.
FF-4, Girish Heights, Beside Bharat Talkies,
Kamptee Road, Nagpur
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2) The Superintending Engineer
PWD, Nagpur Region (Electrical)
19, Ramkrishna Nagar, Wardha Road,
Nagpur - 440 015 .. RESPONDENTS
WRIT PETITION NO. 4444 OF 2016
1) Maharashtra State Electricity
Distribution Co. Ltd. through
its Executive Engineer,Gondia
2) The Assistant Executive Engineer,
Maharashtra State Electricity
Distribution Co. Ltd. Sub Division
Gondia(Rural), Dist. Gondia .. PETITIONERS
...V E R S U S...
1) M/s. Sai Baba Rice Mill,
Through Hiranand Gaganmal Gurnan,
R/o. Kudwah, Tahsil Goregaon, Dist. Gondia
2) The Superintending Engineer
(Electrical) Appellate Authority under the
Electricity Act Public Works Department
Having office at 9, Ramkrishyna Nagar,
Ajni Square, Wardha Road, Nagpur .. RESPONDENTS
WRIT PETITION NO. 4445 OF 2016
1) Maharashtra State Electricity
Distribution Co. Ltd. through
its Executive Engineer, Gondia
2) The Assistant Executive Engineer,
Maharashtra State Electricity
Distribution Co. Ltd. Sub Division
Gondia(Rural), Dist. Gondia .. PETITIONER
...V E R S U S...
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1) M/s. Shubhalaxmi Rice Mill, MIDC
Mundipar, Dist. Gondia
Through Hukumchand Agrawal
aged 62 years, occu. Business,
R/o. 816, Nehru Nagar, Nandanvan
Main Road, Nagpur - 440009
2) The Superintending Engineer
(Electrical) Appellate Authority under the
Electricity Act Public Works Department
Having office at 9, Ramkrishyna Nagar,
Ajni Square, Wardha Road, Nagpur .. RESPONDENTS
WRIT PETITION NO. 4522 OF 2016
1) Maharashtra State Electricity
Distribution Co. Ltd. through
its Executive Engineer,Gondia
2) The Assistant Executive Engineer,
Maharashtra State Electricity
Distribution Co. Ltd. Amgaon
District Gondia .. PETITIONER
...V E R S U S...
1) Vijay s/o Balram Agrawal,
aged major, occu. Business,
R/o. Gortha, Dist. Gondia
2) The Superintending Engineer
(Electrical) Appellate Authority under the
Electricity Act Public Works Department
Having office at 9, Ramkrishyna Nagar,
Ajni Square, Wardha Road, Nagpur .. RESPONDENTS
WRIT PETITION NO. 4578 OF 2016
1) Maharashtra State Electricity
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Distribution Co. Ltd. through
its Executive Engineer,Gondia
2) The Assistant Executive Engineer,
Maharashtra State Electricity
Distribution Co. Ltd. Goregaon Sub Division,
Goregaon, Dist. Gondia .. PETITIONER
...V E R S U S...
1) M/s. Ganpati Rice Mill,
Gondkhaira Dist. Gondia
Through Mrs. Seema w/o Ramesh Karda,
Aged about 48 years, R/o. Surajmal Colony,
Malviya Road, Gondia
2) The Superintending Engineer
(Electrical) Appellate Authority under the
Electricity Act Public Works Department
Having office at 9, Ramkrishyna Nagar,
Ajni Square, Wardha Road, Nagpur .. RESPONDENTS
WRIT PETITION NO. 4579 OF 2016
1) Maharashtra State Electricity
Distribution Co. Ltd. through
its Executive Engineer, Gondia
2) The Assistant Executive Engineer,
Maharashtra State Electricity
Distribution Co. Ltd. Sub Division
Gondia(Rural), Dist. Gondia .. PETITIONER
...V E R S U S...
1) M/s. Shubhalaxmi Rice Mill, MIDC
Mundipar, Dist. Gondia
Through Hukumchand Agrawal
aged 62 years, occu. Business,
R/o. 816, Nehru Nagar, Nandanvan
Main Road, Nagpur - 440009
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2) The Superintending Engineer
(Electrical) Appellate Authority under the
Electricity Act Public Works Department
Having office at 9, Ramkrishyna Nagar,
Ajni Square, Wardha Road, Nagpur .. RESPONDENTS
WRIT PETITION NO. 4620 OF 2016
1) Maharashtra State Electricity
Distribution Co. Ltd. through
its Executive Engineer, Gondia
2) The Assistant Executive Engineer,
Maharashtra State Electricity
Distribution Co. Ltd. Sub Division
Gondia(Rural), Dist. Gondia .. PETITIONER
...V E R S U S...
1) M/s. Shyam Rice Mill, MIDC
Mundipar, Dist. Gondia Through
Sunil Kumar s/o Jagdishprasad Agrawal
aged 48 years, occu. Business,
R/o. Jagdish Bhawan, Durga Chowk
Gondia, District Gondia
2) The Superintending Engineer
(Electrical) Appellate Authority under the
Electricity Act Public Works Department
Having office at 9, Ramkrishna Nagar,
Ajni Square, Wardha Road, Nagpur .. RESPONDENTS
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Shri. A. M. Quazi, counsel for petitioners.
Shri. T. D. Mandlekar, counsel for respondents [except W.P.4252/2019]
Shri. R. D. Bhuibhar, counsel for respondents in W.P.No. 4252/2019.
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CORAM :- MANISH PITALE J.
RESERVED ON :- 23/01/2020
PRONOUNCED ON :- 27/04/2020
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COMMON JUDGMENT
Heard.
(2) Rule. Rule made returnable forthwith. The writ petitions are heard finally with the consent of learned counsel for the rival parties.
(3) This is the second round of litigation in these matters, which have arisen out of orders passed by the Appellate Authority i.e. respondent No.2 in these petitions under Section 127 of the Electricity Act, 2003. In the first round, this Court had partly allowed writ petitions filed by the petitioners herein and the matters were remanded to the Appellate Authority for fresh consideration.
(4) The petitioner No.1 is the Maharashtra State Electricity Distribution Company Limited (MSEDCL) and petitioner No.2 is the Assistant Executive Engineer of the said company. They are aggrieved by orders passed by the respondent No.2 - Appellate Authority on 11/01/2016, except in Writ Petition 4252/2019, wherein the impugned order was passed on 24/10/2018. It is also relevant to note here that Writ Petition ::: Uploaded on - 27/04/2020 ::: Downloaded on - 28/04/2020 05:44:59 ::: 7 / 28 wp5234.16+7.odt No.4252/2019, is in respect of an order passed by the respondent No.2 - Appellate Authority on 24/10/2018 and the said order was not on remand by this Court. Nonetheless, since common issues arise in all these writ petitions, they are being disposed of by this common judgment.
(5) The first respondents in these writ petitions are consumers of electricity supplied by the petitioner company and they were having sanctioned contract demand of electricity to the extent of 100 KVA. According to the petitioner company the said consumers exceeded the sanctioned limit of 100 KVA and this was found in a joint inspection. On this basis, the petitioner company invoked Section 126 of the aforesaid Act and proceeded on the basis that there had been unauthorized use of electricity by the respondent consumers. A provisional assessment bill was issued and after hearing objections of the respondent consumers, final assessment bill was issued to them demanding payment of charges as per Section 126(6) of the said Act @ equal to twice the tariff. The respondent consumers filed appeals under Section 127 of the said Act before the respondent No.2 - Appellate Authority, claiming that the final assessment bills raising the aforesaid demand were illegal. The Appellate Authority quashed the said ::: Uploaded on - 27/04/2020 ::: Downloaded on - 28/04/2020 05:44:59 ::: 8 / 28 wp5234.16+7.odt bills, holding that the use of electricity beyond the sanctioned limit could not be said to be unauthorized use of electricity. Aggrieved by the said orders, the petitioners filed writ petitions before this Court. By common judgment and order dated 15/11/2014, this Court set aside the orders passed by the Appellate Authority and remanded the proceedings for fresh consideration in accordance with law laid down by Hon'ble Supreme Court.
(6) Upon remand of the proceedings, by the said order dated 11/01/2016 passed in these writ petitions, except in Writ Petition No.4252/2019, the respondent No.2 - Appellate Authority again held that the final assessment bills were illegal and thereby quashed and set aside the same. The petitioners were directed to refund the amount deposited by the respondent consumers. The petitioners approached this Court by filing the present writ petitions wherein notice was issued on 19/10/2016 and this Court granted stay of the said impugned orders passed by the Appellate Authority. In writ petition No.4252/2019, this Court issued notice on 24/06/2019 and granted ad-interim stay of the order passed by the respondent Appellate Authority. (7) Mr.A.M.Quazi, learned counsel appeared on behalf of the petitioners in these writ petitions and submitted that ::: Uploaded on - 27/04/2020 ::: Downloaded on - 28/04/2020 05:44:59 ::: 9 / 28 wp5234.16+7.odt the Appellate Authority in the impugned orders dated 11/01/2016 committed a grave error in allowing the appeals of the respondent consumers. According to the learned counsel, the tenor of the impugned orders indicated that the Appellate Authority refused to abide by the law laid down by the Hon'ble Supreme Court in the case of Executive Engineer, Southern Electricity Supply Company of Orissa Limited (Southco) and another vs. Sri Seetaram Rice Mill, (2012) 2 SCC 108, as also the position of law recognized by this Court in the common judgment and order dated 15/11/2014, passed by this Court in Writ Petition No.5985/2013 and connected writ petitions, whereby the earlier orders passed by the Appellate Authority were quashed and set aside and the matters were remanded to the respondent Appellate Authority. On this short ground, the learned counsel appearing for the petitioners requested for setting aside the impugned orders. It was submitted that the Hon'ble Supreme Court in the aforesaid judgment in the case of Executive Engineer vs. Sri Seetaram Rice Mill (supra) and this Court in the common judgment and order clearly recognized the fact that since the respondent consumers admittedly consumed electricity beyond the sanctioned contract demand and thereby the category of tariff was changed, it amounted to unauthorized use of electricity as defined in Section ::: Uploaded on - 27/04/2020 ::: Downloaded on - 28/04/2020 05:44:59 ::: 10 / 28 wp5234.16+7.odt 126 of the aforesaid Act. On this basis, it was submitted that the final assessment bills issued by the petitioner company were justified and that respondent No.2 - Appellate Authority committed a grave error in setting aside the said final assessment bills. The interpretation of Section 126 of the said Act was authoritatively given by the Supreme Court in the aforesaid judgment and that therefore, the respondent No.2 - Appellate Authority could not have held against the petitioners. It was further submitted that respondent consumers were not justified in claiming that since they had already paid penalty for exceeding the contract demand, further charges could not be levied against them under Section 126 of the aforesaid Act. It was submitted that the tariff order issued by the Regulatory Commission provided for levying penalty for exceeding the contract demand and additional charges levied by the petitioner company under Section 126 of the aforesaid Act were on the basis that by exceeding the contract demand beyond 100 KVA, the tariff category of the respondent consumers had changed from that of Low Tension (LT) consumers to High Tension (HT) consumers and that this distinction was not appreciated by the Appellate Authority while passing the impugned orders. On this basis, the learned counsel for the petitioners submitted that the writ ::: Uploaded on - 27/04/2020 ::: Downloaded on - 28/04/2020 05:44:59 ::: 11 / 28 wp5234.16+7.odt petitions deserved to be allowed. Insofar as Writ Petition No.4252/2019 was concerned, it was submitted by the learned counsel for the petitioners that the impugned order passed by the Appellate Authority was unsustainable, since it was based on a tariff order issued by the Regulatory Commission on 03/11/2016 which had nothing to do with the charges levied by petitioner company on the respondent consumers therein, which concerned final assessment bill dated 29/12/2014. It was submitted that a subsequent tariff order could not be made the basis for testing the validity of final assessment bill raised by the petitioner company on the basis of the tariff order that was in vogue at the relevant time.
(8) On the other hand, Shri.T.D.Mandlekar, learned counsel for the respondent consumers in all the writ petitions except in Writ Petition No.4252/2019, submitted that the judgment of the Hon'ble Supreme Court rendered in the case of Executive Engineer vs. Sri Seetaram Rice Mill (supra) was not applicable to the facts of the present cases. It was submitted that the Hon'ble Supreme Court was concerned in the said case with Regulations applicable to the State of Orissa and that therefore, the said judgment of the Hon'ble Supreme Court would not apply ::: Uploaded on - 27/04/2020 ::: Downloaded on - 28/04/2020 05:44:59 ::: 12 / 28 wp5234.16+7.odt to the facts of the present cases. It was then submitted that the Appellate Authority was justified in examining whether the present cases could be said to be cases concerning unauthorized use of electricity, as defined in Section 126 of the aforesaid Act and being an Authority having technical knowledge, in the facts of the present cases, it was correctly found by the Appellate Authority that the aforesaid provision did not apply. It was further submitted that once the respondent consumers had paid penalty for exceeding the contract demand as per the tariff order issued by the Regulatory Commission, there could not be further penalization of the respondent consumers by levying of additional penalty/charges under Section 126 of the aforesaid Act. It was further submitted that the tariff order issued by the Regulatory Commission in November, 2016, clarifying that when penalty was already paid for exceeding contract demand, the respondent consumers shall not be liable for action under Section 126 of the aforesaid Act, clearly demonstrated that the petitioner company was not entitled to issue the final assessment bill under Section 126 of the aforesaid Act.
(9) Reliance was sought to be placed on judgment of the Patna High Court passed in Civil Writ Jurisdiction Case ::: Uploaded on - 27/04/2020 ::: Downloaded on - 28/04/2020 05:44:59 ::: 13 / 28 wp5234.16+7.odt No.1546/2014 [ M/s Sri Ram Industries vs. The State of Bihar and others] and judgment of Jharkhand High Court in Writ Petition No.454/2010 [ M/s Akshay Roll Mills Pvt. Ltd. vs. Jharkhand State Electricity Board ] to support the contentions raised on behalf of the respondent consumers.
(10) Shri. R. D. Bhuibhar, learned counsel appeared on behalf of respondent consumers in Writ Petition No.4252/2019 and he sought to justify the impugned order passed by the Appellate Authority by relying upon the tariff order issued by the Regulatory Commission for the years 2016-17. It was claimed that the clarification issued by the Regulatory Commission applied retrospectively and that therefore, the respondent consumer therein was correctly granted benefit thereof by the Appellate Authority while allowing the appeal.
(11) Heard learned counsel for the rival parties and perused the material on record. In these writ petitions except Writ Petition No.4252/2019, it is significant that this Court in the first round in its common judgment and order dated 15/11/2014 passed in Writ Petition No.5985/2013 and connected petitions, had elaborately discussed the aforesaid judgment of the Hon'ble Supreme Court in the case of Executive Engineer vs. Sri ::: Uploaded on - 27/04/2020 ::: Downloaded on - 28/04/2020 05:44:59 ::: 14 / 28 wp5234.16+7.odt Seetaram Rice Mill (supra). The concept of 'unauthorized use of electricity' in the context of Section 126 of the aforesaid Act, was discussed in detail in the light of law laid down by Hon'ble Supreme Court in the said judgment. This Court had specifically held that a contention raised on behalf of the respondent consumers that the said judgment of the Hon'ble Supreme Court was distinguishable as Regulations applicable to the State of Orissa were being considered, could not be accepted, because the Hon'ble Supreme Court had interpreted Section 126 of the said Act on the basis of harmonious construction of various provisions of the Act. Therefore, it is surprising that the very same contention was sought to be raised on behalf of the respondent consumers before this Court when the present writ petitions were being heard. The same counsel was representing the respondent consumers even in the aforesaid round of litigation and it was his contention that was specifically rejected by this Court. Yet, the same contention was sought to be put forward by the learned counsel appearing for the respondent consumers in these writ petitions, except in Writ Petition No.4252/2019. In this backdrop, the said contention raised on behalf of the aforesaid respondent consumers is rejected at the outset.
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15 / 28 wp5234.16+7.odt (12) Another contention raised on behalf of the respondent consumers was that once they had paid penalty for exceeding the contract demand as per the tariff order issued by the Regulatory Commission, no further charges of penal nature could be imposed upon them under Section 126 of the aforesaid Act. In this context, it was specifically submitted on behalf of the petitioners that the said charges were correctly levied by the petitioners under Section 126 of the aforesaid Act, as the respondent consumers were liable for unauthorized use of electricity as defined under Section 126 of the said Act, particularly explanation (b)(iv) to Section 126 of the said Act. It was submitted that the respondent consumers not only exceeded the contract demand, but by admittedly consuming electricity beyond 100 KVA, their tariff category changed from LT consumers to HT consumers and this certainly amounted to unauthorized use of electricity under Section 126 of the aforesaid Act. (13) In support of the aforesaid contention, the learned counsel for the petitioners specifically relied upon the various paragraphs of the judgment of the Hon'ble Supreme Court in the case of Executive Engineer vs. Sri Seetaram Rice Mill (supra). In fact, the aforesaid contention of the respondent ::: Uploaded on - 27/04/2020 ::: Downloaded on - 28/04/2020 05:44:59 ::: 16 / 28 wp5234.16+7.odt consumers was dealt with by this Court even in the first round of litigation and it was observed in the common judgment and order dated 15/11/2014 passed in Writ Petition No. 5985/2013 and connected writ petitions that even if penalty @150% had been already levied as per the tariff order issued by the Regulatory Commission for the year 2009-10, the respondent consumers were liable to pay charges for unauthorized use of electricity under Section 126 of the Act. Yet, since the Appellate Authority, despite such observations made by this Court in the first round of litigation, again went into the question of applicability of Section 126 of the aforesaid Act to the facts of the present cases and arrived at conclusions contrary to the observations made by this Court in the aforesaid common judgment and order, and further, since the learned counsel for the rival parties in the present cases made submissions in respect of the said judgment of the Hon'ble Supreme Court in the case of Executive Engineer vs. Sri Seetaram Rice Mill (supra), this Court will be referring to the law laid down by the Hon'ble Supreme Court in the said judgment. (14) A perusal of the aforesaid judgment of the Hon'ble Supreme Court shows that one of the questions considered for determination was as follows :- ::: Uploaded on - 27/04/2020 ::: Downloaded on - 28/04/2020 05:44:59 :::
17 / 28 wp5234.16+7.odt "Wherever the consumer consumes electricity in excess of the maximum of the contracted load, would the provisions of Section 126 of the 2003 Act be attracted on its true scope and interpretation ?"
(15) As is evident from the facts that emerge in the present petitions, the said question clearly arises for consideration and the levy of additional charges under Section 126 of the said Act by the petitioner company in the present cases is based on its assertion that Section 126 of the said Act is indeed attracted, when the consumer consumes electricity in excess of the maximum contracted load. The very basis for issuance of the bills to respondent consumers was that they exceeded the maximum contracted load of 100 KVA and their tariff category changed from LT consumers to HT consumers and hence, they were liable under Section 126 of the aforesaid Act.
(16) In the said judgment, the Hon'ble Supreme Court has interpreted Section 126 of the aforesaid Act by applying the principle of purposive construction. It has been categorically held in paragraph 35 of the said judgment that intention is not the foundation for invoking powers of the competent authority and passing an order of assessment under Section 126 of the aforesaid Act. Therefore, all that needs to be ascertained while considering ::: Uploaded on - 27/04/2020 ::: Downloaded on - 28/04/2020 05:44:59 ::: 18 / 28 wp5234.16+7.odt issuance of an assessment bill under Section 126 of the said Act is to see whether the consumer indeed exceeded the contract load and if it resulted in usage of electricity beyond such contracted load. In the present case, there is no dispute about the fact that a joint inspection was conducted and that the respondent consumers had indeed exceeded not only the contract demand, but they also consumed electricity beyond the tariff category for which contract load had been sanctioned. In this very context, the Hon'ble Supreme Court in the aforesaid judgment of the Executive Engineer vs. Sri Seetaram Rice Mill (supra) held as follows :-
"70. There is another angle from which the present case can be examined and obviously without prejudice to the other contentions raised. It is a case where, upon inspection, the officers of the appellant found that respondent was consuming 142 KVA of electricity which was in excess of the sanctioned load. To the inspection report, the respondent had not filed any objection before the competent authority as contemplated under Section 126(3) and had approached the High Court. Limited for the purposes of these proceedings, excess consumption is not really in dispute. As stated above, the contentions raised by the respondent were to challenge the very jurisdiction ::: Uploaded on - 27/04/2020 ::: Downloaded on - 28/04/2020 05:44:59 ::: 19 / 28 wp5234.16+7.odt of the authorities concerned.
71. Consumption in excess of sanctioned load is violative of the terms and conditions of the agreement as well as of the statutory benefits. Under Explanation (b)(iv), 'unauthorised use of electricity' means if the electricity was used for a purpose other than for which the usage of electricity was authorised. Explanation (b)(iv), thus, would also cover the cases where electricity is being consumed in excess of sanctioned load, particularly when it amounts to change of category and tariff. As is clear from the agreement deed, the electric connection was given to the respondent on a contractual stipulation that he would consume the electricity in excess of 22 KVA but not more than 110 KVA. The use of the negative language in the condition itself declares the intent of the parties that there was an implied prohibition in consuming electricity in excess of the maximum load as it would per se be also prejudiced. Not only this, the language of Regulations 82 and 106 also prescribes that the consumer is not expected to make use of power in excess of the approved contract demand otherwise it would be change of user falling within the ambit of 'unauthorised use of electricity'.::: Uploaded on - 27/04/2020 ::: Downloaded on - 28/04/2020 05:44:59 :::
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72. Again, there is no occasion for this Court to give a restricted meaning to the language of Explanation (b)(iv) of Section 126. According to the learned counsel appearing for the respondent, it is only the actual change in purpose of use of electricity and not change of category that would attract the provisions of Section 126 of the 2003 Act. The contention is that where the electricity was provided for a domestic purpose and is used for industrial purpose or commercial purpose, then alone it will amount to change of user or purpose. The cases of excess load would not fall in this category. This argument is again without any substance and, in fact, needs to be noticed only to be rejected."
(17) Thus, the case of the respondent consumers was completely covered in the answer given by the Hon'ble Supreme Court to the specific question quoted above. In fact, the Hon'ble Supreme Court in the context of the said question emphatically held as follows :-
"76. The consistent view of this Court would support the proposition that the cases of excess load of consumption would be squarely covered under Explanation (b)(iv) of Section 126 of the 2003 Act.
Once this factor is established, then the assessing ::: Uploaded on - 27/04/2020 ::: Downloaded on - 28/04/2020 05:44:59 ::: 21 / 28 wp5234.16+7.odt officer has to pass the final order of assessment in terms of Sections 126(3) to 126(6) of the 2003 Act."
(18) Despite the said position of law clearly laid down by the Hon'ble Supreme Court in the said judgment in the case of Executive Engineer vs. Sri Seetaram Rice Mill (supra), which was also taken note of and held to be applicable in the facts of the present cases in the common judgment and order dated 15/11/2014, passed by this Court in Writ Petition No.5985/2013 and connected writ petitions, the Appellate Authority in the present cases committed a grave error in framing a question to the effect as to whether the provision of Section 126 of the said Act would be attracted in the present cases. On the basis of the admitted position of facts and the said position of law, the present cases of the respondent consumers stood clearly covered under Section 126 of the aforesaid Act and there was no propriety on the part of the Appellate Authority to have framed such a question in the first place. Not only this, the Appellate Authority went on to hold in favour of the respondent consumers in the face and in defiance of the said position of law. The discussion on alleged financial benefits to the respondent consumers by change of category by LT consumers to HT consumers was not only ::: Uploaded on - 27/04/2020 ::: Downloaded on - 28/04/2020 05:44:59 ::: 22 / 28 wp5234.16+7.odt misplaced, but wholly irrelevant to the facts of the present case. The reference to change of tariff category was in the context of 'unauthorised use of electricity' defined under Section 126 of the aforesaid Act, which the Appellate Authority completely failed to appreciate while passing the impugned orders. Therefore, the impugned orders deserve to be set aside.
(19) Insofar as Writ Petition No.4252/2019 is concerned, the Appellate Authority has held in favour of the respondent consumers by applying tariff order of the year 2016-17. When the final assessment bill pertained to the year 2013-14 for which the tariff orders issued by the Regulatory Commission for that year were in vogue, there was no question of applying subsequent tariff order dated 03/11/2016 issued by the Regulatory Commission. The learned counsel appearing for the respondent consumers contended that the subsequent tariff order was retrospectively applicable and that therefore, the respondent consumer therein was entitled to benefit thereof. The said contention is stated only to be rejected. The correctness or otherwise of a final assessment bill for a particular year, based on the prevalent tariff order issued by the Regulatory Commission, cannot be contested on the basis of a tariff order issued much later ::: Uploaded on - 27/04/2020 ::: Downloaded on - 28/04/2020 05:44:59 ::: 23 / 28 wp5234.16+7.odt in the year 2016-17. Therefore, there is no substance in the aforesaid contention raised on behalf of the respondent consumers.
(20) In view of the above discussion, it is clear that impugned order passed by the Appellate Authority in this case in favour of the respondent consumer is also not sustainable.
(21) In the common judgment and order dated 15/11/2014 passed by this Court in Writ Petition No.5985/2013 and connected petitions, this Court had found that the Appellate Authority had completely misdirected itself and that therefore, it would be necessary to direct the Appellate Authority to reconsider the appeals filed by the respondent consumers in each writ petition in the light of law laid down by the Hon'ble Supreme Court in the aforesaid judgment. The purpose of remand was for the Appellate Authority to consider whether the final assessment bills were correct or not, upon application of Section 126 of the aforesaid Act. This necessarily meant that the Appellate Authority was expected to assess the quantum of the charges levied by the petitioner company on the respondent consumers upon applicability of Section 126 of the aforesaid Act. This was the only question that the Appellate Authority was expected to consider ::: Uploaded on - 27/04/2020 ::: Downloaded on - 28/04/2020 05:44:59 ::: 24 / 28 wp5234.16+7.odt and decide. A perusal of the impugned order dated 11/01/2016 shows that such a question was indeed framed by the Appellate Authority, but since the said Appellate Authority committed a grave error in again going into the question of the very applicability of the Section 126 of the aforesaid Act, it failed to decide the only question that it could have considered and decided, upon remand of the matters by this Court. (22) A perusal of the appeals filed by the respondent consumers before the Appellate Authority shows that there are some grounds raised in the appeals indicating a challenge to the quantum of assessment by the petitioner company while issuing final assessment bills by applying Section 126 of the aforesaid Act. The appeal preferred by the respondent consumer in Writ Petition No.4252/2019, also shows that there are some grounds raised on this aspect of the matter. Since even till date there is no finding by the Appellate Authority on the merits of the question of quantum of assessment in the final assessment bills, there is no option, but to remand the proceedings back to the Appellate Authority for a proper decision on the said aspect of the matter, particularly because it necessarily involves technical expertise and knowledge, which the Appellate Authority is equipped to handle. ::: Uploaded on - 27/04/2020 ::: Downloaded on - 28/04/2020 05:44:59 :::
25 / 28 wp5234.16+7.odt (23) But, such orders of remand are necessitated in the present cases, because of the gravely erroneous approach adopted by the Appellate Authority in deciding the appeals after they were remanded by this Court. Despite the categorical findings rendered by this Court in the common judgment and orders dated 15/11/2014 passed in Writ Petition No.5985/2013 and connected writ petitions, the Appellate Authority once again went into the question regarding applicability of Section 126 of the said Act to the respondent consumers in the facts of the present cases. This Court has gathered an impression that the Appellate Authority was unable to understand the basics of the manner in which the order of remand passed by this Court was to be worked out. The only question that could have been considered was regarding the quantum of assessment in the final assessment bills issued by the petitioner company under Section 126 of the aforesaid Act.
(24) Due to the approach of the Appellate Authority, the petitioners were required to again approach this Court by way of the present writ petitions, which remained pending in this Court from the year 2016 and in the case of Writ Petition No.4252/2019, from the year 2019. This led to waste of time of ::: Uploaded on - 27/04/2020 ::: Downloaded on - 28/04/2020 05:44:59 ::: 26 / 28 wp5234.16+7.odt this Court to again apply the aforesaid judgment of the Hon'ble Supreme Court in the case of Executive Engineer vs. Sri Seetaram Rice Mill (supra), although it was already clarified in the aforementioned common judgment that the same was squarely applicable and that there was no substance in the contentions raised on behalf of the respondent consumers that Section 126 of the aforesaid Act pertaining to unauthorized use of electricity would not be applicable in the facts and circumstances of the present case. The Appellate Authority is responsible for such a situation.
(25) Be that as it may, this Court is of the opinion that the matters will have to be remanded back again to the Appellate Authority, which needs to decide the cases expeditiously.
(26) As regards the reliance placed by the learned counsel appearing for the respondent consumers on the judgments of the Patna High Court and Jharkhand High Court, suffice it to say that the law laid down by the Hon'ble Supreme Court in the case of Executive Engineer vs. Sri Seetaram Rice Mill (supra) is absolutely clear and applying the same to the facts and circumstances of the present cases would show that Section 126 of ::: Uploaded on - 27/04/2020 ::: Downloaded on - 28/04/2020 05:44:59 ::: 27 / 28 wp5234.16+7.odt the aforesaid Act pertaining to unauthorized use of electricity, applies in these cases. Therefore, there is no substance in the contention raised on behalf of the respondent consumers by placing reliance on the said judgments.
(27) In view of the above, the writ petitions are disposed of in the following manner :-
(a) The impugned orders in the present writ petitions dated 11/01/2016 and 24/10/2018 passed by the Appellate Authority are quashed and set aside.
(b) The proceedings are remanded to the respondent Appellate Authority for consideration of only the question of quantum of assessment made by the petitioner company while issuing final assessment bills under Section 126 of the aforesaid Act.
(28) In the backdrop of the discussion above, it is made clear that the Appellate Authority will not go into the question, as to whether Section 126 of the aforesaid Act is applicable to the respondent consumers in the facts and circumstances of the present case. The Appellate Authority shall only decide the aspect of quantum of assessment as made by the ::: Uploaded on - 27/04/2020 ::: Downloaded on - 28/04/2020 05:44:59 ::: 28 / 28 wp5234.16+7.odt petitioner company, on facts, after giving sufficient opportunity to the rival parties to place cogent material on record in that regard. (29) The Appellate Authority shall decide the appeals filed by the respondent consumers expeditiously and in any case within a period of six months from today. (30) Rule made absolute in above terms. No costs.
JUDGE KOLHE/P.A. ::: Uploaded on - 27/04/2020 ::: Downloaded on - 28/04/2020 05:44:59 :::